CheMondis General Terms of Use
1. ADMISSION AND REGISTRATION
1.1 The CheMondis Platform may only be used by professional suppliers and (prospective) buyers of chemical products (collectively “Users” and individually a “User”). Non-professional use for private purposes (i.e., private consumers in the sense of applicable law) will not be admitted to the use of the CheMondis Platform. Each User may use the CheMondis Platform at the same time, but strictly through different Authorized Representatives as defined in Section 1.6 below, to supply chemical products (in such case the relevant User is referred to as a “Supplier”) or to buy chemical products (in such case the relevant User is referred to as a “Buyer”).
1.2 The following requirements have to be met cumulatively to be eligible for registration as a User on the CheMondis Platform:
• registered company;
• valid VAT/GST number.
These requirements are subject to change from time to time, including the introduction of additional requirements.
1.3 By completing the registration (either by entering registration data itself or confirming registration data compiled by CheMondis for the User and sent to the User for verification), the User submits an offer to CheMondis to enter into an agreement for the use of the CheMondis Platform which is exclusively based on these Terms of Use; any terms and conditions of the User are rejected and shall not be applicable. CheMondis may accept or reject such offer by the User in its sole discretion.
1.4 Upon registration, CheMondis may, but shall not be obliged to, subject the User to the following verifications and checks which may be carried out via external service providers:
• Verification of tax numbers and addresses;
• blacklist check with a view to requirements under applicable trade legislation regarding economic sanctions, money laundering, etc.; and
• credit check.
These verifications and checks are subject to change from time to time, including the introduction of additional checks.
1.5 Notwithstanding Section 1.4, the User represents and warrants and shall be solely responsible that any information and data provided or confirmed by it in the course of registration is true, accurate and complete. CheMondis shall not be obliged to review, verify or correct any such information and data. The User shall notify CheMondis without undue delay of any changes to such information, in particular changes in the circumstances which are relevant pursuant to Section 1.1 for admission to the use of the CheMondis Platform.
1.6 In the course of registration, each User shall designate one or more individuals who are in an employment relationship with the User as being authorized to access and use the CheMondis Platform on behalf of such User (“Authorized Representatives”) by specifying the e-mail addresses of such individuals within the User’s organization. Each Authorized Representative shall only have one account and upon registration shall be designated as acting on behalf of the User either (i) in the role as Supplier, (ii) in the role as Buyer. Any references in these Terms of Use to a Supplier or Buyer using the CheMondis Platform, including the entering into any business transactions, shall mean the respective User for which they are acting. In addition, Authorized Representatives may be designated to act in the role as administrator of the User to administer the account related to the User and to register and unregister either Buyers or Suppliers (but not both) of such User in accordance with these Terms of Use (“Administrator”). An Administrator may not at the same time be designated or act as Buyer or Supplier.
Authorized Representatives who already registered in the role as Supplier must not attempt to register, directly or indirectly, in the role as Buyer and vice versa. CheMondis reserves the right, but shall not be obliged, to verify the identity of Authorized Users with a view to such separation. The User shall be solely responsible for ensuring such separation by implementing and strictly maintaining the structural safeguards as set forth in Section 8.2(g). Authorized Representative and Administrator accounts are not transferable.
1.7 The CheMondis Platform is provided subject to the current state of technology. Availability is subject to interruptions due to maintenance, improvements or security measures, and to unscheduled downtime due to technical problems, external interference with CheMondis’ systems and disruption of Internet connectivity. CheMondis will reasonably consider the Users’ business interests when scheduling maintenance. CheMondis reserves the right to limit or suspend access to the CheMondis Platform in its sole discretion and with reasonable consideration of the Users’ business interests if it considers this necessary with a view to maintaining the security, integrity, availability or performance of the CheMondis Platform; Section 8.6 shall remain unaffected. CheMondis may change the appearance and functionality of the CheMondis Platform from time to time without materially impairing the functionality offered to the User.
2. PRODUCT REGULATORY COMPLIANCE
2.2 Suppliers are required to provide the Material Safety Data Sheet (MSDS) on the Product Detail Page according to Section 3.2 on the CheMondis Platform. Technical Data Sheets can be provided optionally.
2.3 Irrespective of the foregoing, CheMondis is not responsible for ensuring and does not guarantee that the products comply with any regulatory requirements and have all required regulatory registrations. This shall remain the respective Supplier’s sole responsibility.
3. PRODUCT LISTING AND PRODUCT DETAIL PAGE
3.2 Every product listed on the CheMondis Platform requires a product detail page (“Product Detail Page”) to provide all relevant information needed by Buyers to take the purchase decision. The information to be provided by the Supplier on the Product Detail Page includes but is not limited to:
• material safety data sheets;
• technical data sheets (optional);
• product description text;
• catalogue information (e.g., product category, application and relevant industries); and
• available packages incl. prices and availability.
3.3 CheMondis reserves the right, but shall not be obliged, to revise, modify, supplement, remove or correct information and data provided by Suppliers for inclusion in the Product Detail Page with a view to achieving a consistent user experience for Buyers and to improve information quality. In such case, CheMondis will propose such changes to the Supplier and the Supplier shall be responsible for reviewing and implementing such changes in the Product Detail Page. In any case, the Supplier remains fully and solely responsible for the accuracy, content and legality of the information provided on the Product Detail Page; Section 2.3 shall apply accordingly.
3.4 Any product listing on the CheMondis Platform has to fit into at least one product category, application or industry according to the CheMondis product catalogue as applicable from time to time. Listing a product that does not fit into any existing product category requires approval by CheMondis, and CheMondis may choose in its sole discretion to create a new product category.
3.5 The Supplier acknowledges and agrees that due to technical reasons a new product listing (i) may not be searchable by keyword or category for up to 2 hours during normal operation and (ii) may still be accessible and searchable on the CheMondis Platform for some time after delisting. CheMondis does not guarantee exact listing durations.
3.6 Any information displayed or otherwise made available through the CheMondis Platform is in English. Any translation of such information (including the translation service pursuant to Section 5.2) shall be provided for convenience only. Solely the English language version of any information provided on the CheMondis Platform shall be binding.
4. SALE AND PURCHASE OF PRODUCTS
4.1 CheMondis acts as an intermediary only and does not itself list, offer or sell any products on the CheMondis Platform, nor does it have possession of any such products or verify their quality. Any agreements for the purchase of products are entered into solely and directly between the respective Supplier and Buyer. CheMondis is not party to and has no responsibility or liability under any of these agreements or in relation to any of the products.
4.2 A purchase confirmed between a Supplier and a Buyer on the CheMondis Platform in accordance with the following provisions constitutes a legally binding purchase contract between the involved Users for which they are acting based on the terms and conditions agreed by these parties, including any terms and conditions posted by a Supplier or, subject to Section 4.3(a)(vii) below, a Buyer.
4.3 CheMondis offers the three modes of purchase depending on the type of subscription for the use of the CheMondis Platform purchased by a Supplier and/or a Buyer: “Instant Deals”, “Request Quote” and “Request Agreement” which operate according to the following procedures and requirements.
(a) Instant Deals
(i) Suppliers may offer products by way of an Instant Deal on their listings to indicate that a certain number of packages of a product is available for purchase and shipping with a fixed price and guaranteed availability. Offering products by way of an Instant Deal shall not constitute a binding purchase offer by the Supplier but only a request to the Buyer to make an offer (invitatio ad offerendum).
(ii) Activation of a product listing for Instant Deals requires that relevant package information, prices and availability of the respective products are provided by the Supplier.
(iii) The Supplier shall ensure its ability to provide the available quantity on packaging level as indicated in the product listing. The number of available packages of a certain product is automatically reduced by the CheMondis Platform upon conclusion of each Instant Deal involving such product. The Supplier shall be solely responsible for monitoring product availability, for replenishing its stock of products and for updating the availability of packages accordingly in the product listing to ensure that the indicated quantity is always actually available.
(iv) All quantities available by way of an Instant Deal option have to be ready for immediate dispatch by the Supplier. EXW (Incoterms® 2020) applies to any such shipment.
(v) All product prices displayed on the Product Detail Page are exclusive of VAT and based on EXW (Incoterms® 2020), i.e., excluding shipping costs, customs duties (if any) and any other taxes.
(vi) The Buyer selects the number of packages to buy, moves them to the cart and proceeds to the checkout.
(vii) Any purchase of products by way of an Instant Deal is solely based on the Supplier’s terms and conditions. The Buyer’s terms and conditions do not apply.
(viii) If the Buyer selects the Supplier’s Instant Deal, the transaction proceeds with the checkout. Indication by the Buyer of the definitive decision to purchase products based on the Instant Deal by clicking the “Buy” button (or triggering any other similar mechanism as may be implemented in the checkout process at the relevant time) constitutes a binding offer by the Buyer to the Supplier to purchase the products selected by the Buyer based on the Supplier’s Instant Deal. After checkout, the purchase by way of an Instant Deal is either confirmed and the Buyer’s offer is accepted by the Supplier via an e-mail confirmation sent by CheMondis to both the Buyer and the Supplier, or it is rejected by the Supplier, in which case the Buyer is notified by e-mail of such rejection.
(b) Request Quote
(i) In the Request Quote mode, the Buyer addresses an individual Supplier by specifying the requested quantity and delivery date of certain products and can propose a price as basis for negotiation with the respective Supplier. The Request Quote mode is available for all active product listings on CheMondis. A request for a quote shall not constitute a binding purchase offer by the Buyer but only a request to the Supplier to provide a non-binding quote.
(ii) Buyer and Supplier may discuss the details of the request in a chat via the CheMondis messaging function. Buyer and Supplier are encouraged to fix all relevant details of the quote (e.g., price, quantity, delivery date, applicable Incoterm, shipment cost, duration of the quote, etc.) during the chat conversation until the Supplier provides a quote to the Buyer which the Buyer may accept or reject. Such accepted quote shall only serve to set out the agreed commercial terms, but shall not create any obligation of the Supplier to sell or of the Buyer to purchase any products.
(iii) If the Buyer selects the Supplier’s quote before its expiration to purchase products on that basis, the transaction proceeds with the checkout. Indication by the Buyer of the definitive decision to purchase products based on such quote by clicking the “Buy” button (or triggering any other similar mechanism as may be implemented in the checkout process at the relevant time) constitutes a binding offer by the Buyer to the Supplier to purchase the products selected by the Buyer based on the Supplier’s quote. After checkout, the purchase by way of a Request Quote is either confirmed and the Buyer’s offer is accepted by the Supplier via an e-mail confirmation sent by CheMondis to both the Buyer and the Supplier, or it is rejected by the Supplier, in which case the Buyer is notified by e-mail of such rejection.
(iv) Purchase details in the Request Quote mode (in particular prices and quantities) are only visible to the Buyer and Supplier who are party to the transaction.
(c) Request Agreements
(i) In the Request Agreement mode, the Buyer addresses an individual Supplier by specifying the expected demand of certain products over a certain time period and can propose a price as basis for negotiation with the respective Supplier. The Request Agreement mode is available for all active product listings on CheMondis. A request for an agreement shall not constitute a binding purchase offer by the Buyer but only a request to the Supplier to provide a non-binding framework quote in relation to the Buyer’s expected demand.
(ii) Buyer and Supplier may discuss the details of the request in a chat via the CheMondis messaging function. Buyer and Supplier are encouraged to fix all relevant details of the agreement (e.g., price, expected volume of purchase, lead time for deliveries, applicable Incoterm, shipment cost, start and end date of the commercial terms, etc.) during the chat conversation until the Supplier provides a framework agreement to the Buyer which the Buyer may accept or reject. Such accepted framework agreement shall only serve to set out the agreed commercial terms, but shall not create any obligation of the Supplier to sell or of the Buyer to purchase any products.
(iii) If the Buyer selects the Supplier’s framework agreement before its expiration to purchase products on that basis, the transaction proceeds with the checkout. Indication by the Buyer of the definitive decision to purchase products based on such framework agreement by clicking the “Buy” button (or triggering any other similar mechanism as may be implemented in the checkout process at the relevant time) constitutes a binding offer by the Buyer to the Supplier to purchase the products selected by the Buyer based on the framework agreement. After checkout, the purchase by way of a Request Agreement is either confirmed and the Buyer’s offer is accepted by the Supplier via an e-mail confirmation sent by CheMondis to both the Buyer and the Supplier, or it is rejected by the Supplier, in which case the Buyer is notified by e-mail of such rejection.
(iv) Agreement and purchase details in the Request Agreement mode (in particular prices and quantities) are only visible to the Buyer and Supplier who are party to the transaction.
(d) In any of the purchasing modes, the Buyer is solely responsible for reviewing all information provided in the product listing before submitting a quote or agreement request (in case of the Quote Request or Agreement Request modes) or completing the purchase by proceeding to the checkout (in case of an Instant Deal).
(e) CheMondis reserves the right, but shall not be under an obligation, to deactivate the listing of affected products or suspend the respective Supplier account as a whole if CheMondis repeatedly receives complaints regarding failure of the Supplier to timely fulfil any Instant Deal, Request Quote or Request Agreement purchase transaction.
5. ADDITIONAL SERVICES, MODIFICATIONS
5.1 Suppliers may implement electronic data interchange (EDI) connectivity to the CheMondis Platform which automates the receipt by Suppliers of purchase orders or product releases from the CheMondis Platform to trigger the delivery of products by Supplier to the respective Buyers to fulfill purchase transactions concluded via the CheMondis Platform. Such connectivity is based on infrastructure and services provided to CheMondis by an external service provider. Section 7.3 shall apply accordingly.
5.2 Suppliers on the CheMondis Platform may (i) initiate a credit check in relation to Buyers from whom a request in the Instant Deal, Request Offer or Request Agreement modes was received, and/or (ii) following a purchase of products by a Buyer, initiate a debt collection request in relation to the relevant Buyer. Such request will be processed by CheMondis and forwarded to an external service provider as indicated to the Supplier when submitting such request. CheMondis commissions such external service provider solely in the name and on behalf of the Supplier, thus forming an agreement directly between the Supplier and the external service provider. By submitting the credit check request, the Supplier authorizes CheMondis accordingly. CheMondis shall not be party to the agreement between the Supplier and the external service provider and not incur any obligations vis-à-vis the Supplier in relation to such agreement, and the Supplier shall be solely liable for payment of the fees of the external service provider as indicated during the credit check request process.
5.3 The User may choose to have information displayed or otherwise made available on the CheMondis Platform translated into certain offered languages other than the standard language English. This feature may not be available for all types of information and communication on the CheMondis Platform. Such translation is generated automatically by means of artificial intelligence. The User acknowledges and agrees that (i) such translation is provided for convenience only, (ii) it may be inaccurate or incomplete, (iii) that the User and its Authorized Representatives should not rely on such translation under any circumstances, in particular when entering into legally binding agreements on the CheMondis Platform, and (iv) that it is used by the User at its own risk. CheMondis shall not be responsible for any damage caused by any inaccuracy, incompleteness or other errors or faults in any such translation, including any transactions which are affected by any miscommunication resulting from the use of such translation.
5.4 CheMondis may offer additional services in the future and reserves the right to discontinue, modify or replace existing features and services at any time in particular to reflect changing regulatory or legal requirements, to further develop the CheMondis Platform or its business model or for other operational and business reasons. CheMondis will reasonably consider the User’s legitimate interests when making such changes. CheMondis will notify the User of any changes which could affect the use of the CheMondis Platform more than insubstantially no less than two months in advance.
6. PAYMENT
6.1 The terms of payment for the purchase of products on the CheMondis Platform (e.g., payment in advance or payment per invoice) are determined by the Supplier.
6.2 Any payment relating to the sale and purchase of products shall be effectuated between the Supplier and the Buyer and does not involve CheMondis. CheMondis does not provide any financial guarantees to either the Supplier or the Buyer. The Supplier bears the payment risk. CheMondis reserves the right, but shall not be under an obligation, to collect credit rating information on Buyers to increase trust on the part of Suppliers.
6.3 The use of the CheMondis Platform or certain of its features may be subject to a fee as set out in the Subscription Terms. In case of a trial period, such fee shall only apply after the lapse of such trial period. CheMondis may offer additional services (including the additional services set out in Section 5) against a charge or make access to the CheMondis Platform subject to payment of a fee in the future.
6.4 Any fees payable for the use of the CheMondis Platform, including fees for any additional services, shall apply exclusive of VAT and will be invoiced by CheMondis monthly in arrears or twelve months in advance, depending on the model chosen by the User. Any such invoices shall be payable within 7 days as of receipt of the invoice by the User via the payment method chosen by the User during the sign-up process.
7. COMMUNICATION
7.1 The User is solely and fully responsible for any of its communication through the CheMondis Platform, including any chats via the CheMondis messaging function.
7.2 Any communication between Users or by CheMondis to Users shall be deemed received by the respective User upon receipt of such communication through the CheMondis messaging function or, if sent by e-mail, upon receipt of such e-mail by such User in the account specified during registration for the CheMondis Platform.
7.3 With respect to any communication exchanged between Users over the CheMondis Platform, CheMondis acts as a messenger (Bote) only and not as representative or agent of either User. None of the Users has authority to act on behalf or in the name of CheMondis, nor does CheMondis act on behalf or in the name of any User.
7.4 The User consents to the transfer of data and information communicated by such User through the CheMondis Platform. Such data and in particular any data or communication relating to a purchase transaction between a Supplier and a Buyer will not be disclosed by CheMondis to any third party other than the Supplier and Buyer who are party to such transaction.
7.5. CheMondis reserves the right, but shall not be obliged, to view and monitor or otherwise access and to analyze (including by means of artificial intelligence) communication through the CheMondis Platform to facilitate negotiations between a Supplier and a Buyer and to improve and extend the functionality of the CheMondis Platform. In doing so, CheMondis does not take over any responsibility or liability in relation to the negotiations between a Supplier and a Buyer or their outcome. Any such access to and analyzing of communication through the CheMondis Platform is subject to the confidentiality provisions in Section 11 and is carried out in compliance with applicable data protection law and the CheMondis data protection information which is available at www.chemondis.com/privacy.html.
8. FURTHER USER OBLIGATIONS
8.1 The User shall keep the access credentials for the CheMondis Platform strictly confidential and shall not share them with any third party, and undertakes to ensure that all of its Authorized Representatives and Administrators comply with this clause as if each of them were itself bound by it.
8.2 The User shall be solely responsible:
(a) for ensuring that any information it provides on the CheMondis Platform (including any information on the Product Detail Page and as part of Instant Deal, Request Quote or Request Agreement purchases) and any information about itself is true, accurate and complete and is kept up to date;
(b) for ensuring that its presence and communication on the CheMondis Platform complies with applicable legal requirements, e.g., as regards the obligation to provide an imprint or to include mandatory information in its communication;
(c) for storing and creating regular backups in accordance with best industry practice of any data related to the purchase transactions entered into through the CheMondis Platform;
(d) for any activities, in particular any contractual declarations, that occur on the CheMondis Platform under its accounts or passwords;
(e) for ensuring that access credentials for the CheMondis Platform are not shared or otherwise made available among Authorized Representatives of one User;
(f) for monitoring and ensuring that its Administrator registers and unregisters each of its Authorized Users either as Buyers or as Suppliers (but not both at the same time) solely in accordance with these Terms of Use; and
(g) for ensuring that where a User has registered Authorized Representatives as both Supplier and Buyer, this may only be effected on the basis of (A) separate individuals acting as Authorized Representatives for the Supplier role and the Buyer role of such User on the CheMondis Platform with such individuals being allocated to strictly separate business divisions of such User without overlap in personnel, (B) distinct business divisions being implemented and maintained within the undertaking of the User in a manner in particular ensuring that the Authorized Representatives acting on (i) the Supplier role and (ii) the Buyer role on the CheMondis Platform are separated through appropriate barriers (Chinese Walls) preventing exchanges or communication between such Authorized Users and (C) ensuring that no exchange of any information obtained through the CheMondis Platform will take place directly or indirectly between business divisions acting on the Supplier role and the Buyer role on the CheMondis Platform.
8.3 The User must not use the CheMondis Platform:
(a) for any purposes other than selling or purchasing, as the case may be, chemical products listed on the CheMondis Platform in the course of its ordinary business;
(b) for any activities or in any manner which is unlawful under any applicable laws of any country, including export control laws and anti-trust laws; or
(c) to distribute or transmit (i) unsolicited advertising or promotional material, except with the recipient’s consent, (ii) advertising or promotional material related to products or services not offered on the CheMondis Platform, except with the recipient’s consent, (iii) any content that violates any intellectual property or other rights of any third party, (iv) any content which is false, defamatory, obscene, pornographic, indecent, discriminatory, abusive, or otherwise violates any applicable laws, or (v) any harmful or malicious materials including viruses, Trojan horses or worms.
8.4 The User must not do or attempt to do any of the following:
(a) Grant the use of or otherwise disclose its access credentials for the use of the CheMondis Platform (i) to any third party or to individuals acting as Authorized Representatives of the respective User in the role as Supplier with respect to access credentials of other individuals acting as Authorized Representatives of the respective User in the role as Buyer, or (ii) to any third party or to individuals acting as Authorized Representatives of the respective User in the role as Buyer with respect to access credentials relating to other individuals acting as Authorized Representatives of the respective User in the role as Supplier;
(b) manipulate prices, e.g., by collaborating with intermediaries or using fake profiles;
(c) contact another User outside the CheMondis Platform to conclude or implement a purchase transaction which was initiated with such User over the CheMondis Platform;
(d) after an Authorized User has registered in the role as a Supplier, also registering such Authorized User, or permitting such Authorized User to register, in the role as a Buyer or vice versa;
(e) after an Authorized User was registered in the role as Administrator, also registering such Authorized User as Buyer or Supplier, or permitting such Administrator to register both Buyers and Suppliers (and not only one of these roles);
(f) gain unauthorized access to any portions or areas of the CheMondis Platform for which access has not been expressly granted to the User or its Authorized Representatives by CheMondis;
(g) obtain or recreate any access credentials of any other Users or Authorized Representatives by hacking, password mining or similar means;
(h) block, falsify or otherwise interfere with any information or data communicated by other Users over the CheMondis Platform, or use any information provided by other Users outside the CheMondis Platform or otherwise for any purpose other than the initiation or implementation of purchase transactions over the CheMondis Platform; or
(i) take any action or do anything that could impair the security, integrity, availability or performance of the CheMondis Platform.
8.5 The User shall notify CheMondis without undue delay if it encounters any issues or malfunctions during the use of the CheMondis Platform.
8.6 Without limiting other legal remedies available to CheMondis, CheMondis may, but shall not be obliged, to (i) limit, restrict, suspend, or terminate User account(s) and access to the CheMondis Platform in whole or in relation to individual Authorized Representatives, (ii) remove or otherwise restrict the visibility of product listings of a User, and (iii) take technical and legal steps to keep the User and any or all of its Authorized Representatives from accessing and using the CheMondis Platform to protect the integrity, stability and security of the CheMondis Platform as well as other Users if CheMondis has indication that such User or any of its Authorized Representatives violates its obligations and/or the use restrictions applicable in relation to the CheMondis Platform under these Terms of Use, in particular in case of violation of this Section 8. This shall apply accordingly if CheMondis, despite using reasonable endeavors, is unable to verify or authenticate any information provided by a User. Depending on the circumstances, including without limitation the severity and impact of such violation on the CheMondis Platform, (i) CheMondis will provide the respective User reasonable advance notice of such measures and give the User opportunity to remedy such violation or (ii) notify the respective User without undue delay after such measures have been taken, and give the User opportunity to comment on the circumstances which caused CheMondis to take these measures.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 CheMondis reserves all intellectual property rights in the CheMondis Platform and any underlying software, algorithms, databases and content. Except as otherwise expressly provided, no rights in any such intellectual property is transferred or granted to the User beyond the non-exclusive, non-transferable and non-sub-licensable right to access the CheMondis Platform during the term of the agreement for use with CheMondis, and subject always to these Terms of Use.
9.2 The User may not copy, reproduce, distribute, display, transmit, modify, create derivative works or reverse engineer any portion of the CheMondis Platform or any information, data and other content made available by other Users through the CheMondis Platform. The User must not use any robots, spiders, crawlers, deep links or any similar technology, devices or manual processes to systematically and/or repeatedly access and collect information made available through the CheMondis Platform.
9.3 The User grants CheMondis the non-exclusive, royalty-free, transferable, sub-licensable worldwide right to use any information, data and other content provided or submitted by the User for the purpose of operating the CheMondis Platform.
10. DATA PROTECTION
10.2 The User shall be solely responsible for ensuring that the transfer of personal data of its Authorized Representatives, Administrators, employees or other individuals to CheMondis and the processing of such data by CheMondis (as specified in the CheMondis data protection information) complies with applicable data protection law, in particular that any required consent has been validly obtained. Section 12.7 shall apply in relation to any claims against CheMondis related to such transfer of data to CheMondis or that the use of such data in compliance with Section 10.1 violates applicable data protection law.
11. CONFIDENTIALITY
11.1 Either party shall treat as strictly confidential and not disclose, enable access to or use any information, data, documents or materials in any form (whether written, electronic, graphic, visual, oral or otherwise) and any copies of the foregoing that are provided by either party to the other or which otherwise become accessible or known to a party, including any such materials provided by other Users and including in particular any communication in connection with the negotiation and conclusion of purchase transactions on the CheMondis platform (including any requests, proposals, quotes or offers exchanged between a Supplier and a Buyer (in each case, “Confidential Information”). This shall apply regardless of whether such Confidential Information falls under the German Trade Secret Act (Gesetz zum Schutz von Geschäftsgeheimnissen – GeschGehG) or similar laws. Both parties shall use all reasonable endeavours to prevent any access by third parties to such Confidential Information.
11.2 Confidential Information shall however not include any information which (i) is in the public domain, (ii) subsequently enters into the public domain, except through disclosure by a party in breach of any undertaking under these Terms of Use; or (iii) is or becomes available to either party from a third party, provided that such third party is not in breach of any confidentiality obligation in relation to such information.
11.3 This Section 11 shall not prohibit disclosure or use of any information if and to the extent:
(a) the disclosure or use is required by law or any regulatory body, provided that, to the extent legally permitted, the party so required to disclose Confidential Information shall notify the other party without undue delay and reasonably cooperate with the other party in the defence of such request and/or to obtain assurances as to confidentiality from such body;
(b) the disclosure or use is required for the purpose of any judicial proceedings arising out of the agreement between the User and CheMondis, or the disclosure is made to a tax authority in connection with the tax affairs of the disclosing party;
(c) the disclosure is made to professional advisers of either party on terms that such professional advisers undertake to comply with the provisions of this Section 11 in respect of such information as if they were a party to the agreement between the User and CheMondis; or
(d) the other party has given prior written approval to the disclosure or use.
11.4 Notwithstanding the preceding provisions, CheMondis may use the User’s name and logo as reference in its marketing materials, promotion and advertising of the CheMondis Platform.
12. LIABILITY
12.1 CheMondis shall only be liable to the User for any act or omission or breach of any duty under or in connection with the agreement with the User to the extent that such liability results from (i) CheMondis’ willful misconduct or gross negligence, (ii) damage from injury to life, body or health due to negligent breach or (iii) a slightly negligent breach of a fundamental duty (Kardinalpflicht) that endangers the achievement of the objective of the agreement with the User. A fundamental duty shall mean an obligation whose fulfilment is critical for the due implementation of the agreement and on which the User may reasonably rely. CheMondis’ liability in case of a slightly negligent breach of a fundamental duty shall be limited to typical and reasonably foreseeable damage to the User.
12.2 Section 536a para. 1 alt. 1 German Civil Code (Bürgerliches Gesetzbuch, BGB) shall not apply.
12.3 CheMondis and its affiliates, directors, officers, agents, employees and contractors shall not be liable to any User in case of slight negligence with respect to any services which are provided without a charge. Any further limitation of CheMondis’ liability in such cases based on statutory law shall remain unaffected.
12.4 The foregoing provisions shall apply to the contractual and non-contractual liability of CheMondis (including liability in tort) as well as any liability arising out of dealings before the conclusion of a contract (culpa in contrahendo). They shall also apply to any liability of any of CheMondis’ affiliates, directors, officers, managers, employees, agents and contractors.
12.5 CheMondis’ liability for wilful misconduct, negligent damage to life, bodily injury or damage to health or according to the German Product Liability Act, if any, shall remain unaffected.
12.6 CheMondis’ liability for wilful misconduct, negligent damage to life, bodily injury or damage to health or according to the German Product Liability Act, if any, shall remain unaffected.
(a) any purchase contracts concluded through the CheMondis Platform;
(b) any products offered or information, data, content or other material provided or communicated by any User, including if CheMondis modified, supplemented, removed, corrected or otherwise reviewed such material in accordance with Section 3.3 or otherwise provided guidance to a User in the context of its creation. CheMondis does not endorse and is not obliged to verify any such materials;
(c) any suspension, changes to the CheMondis Platform or other action taken by CheMondis in accordance with these Terms of Use; and
(d) any services provided by external service providers which are commissioned by CheMondis on behalf of the User, including the additional services specified in Section 5.2.
12.7 For the avoidance of doubt and notwithstanding the foregoing, CheMondis shall not be liable in contract, tort (including negligence), based on dealings before the conclusion of a contract (culpa in contrahendo) or otherwise for any damage or losses arising directly or indirectly from:
(a) any purchase contracts concluded through the CheMondis Platform;
(b) any products offered or information, data, content or other material provided or communicated by any User, even if CheMondis modified, supplemented, removed, corrected or otherwise reviewed such material or provided guidance to a User in the context of its creation; CheMondis does not endorse and is not obliged to verify any such materials; and
(c) any suspension, changes to the CheMondis Platform or other action taken by CheMondis in accordance with these terms of use.
12.8 The User shall indemnify and hold CheMondis and its affiliates, directors, officers, agents, employees and contractors harmless from and against any claims, losses or costs, including reasonable attorney fees, incurred by CheMondis
(a) which arise out of or in connection with any agreement entered into by such User with any other User or any third party including external service providers;
(b) due to any breach by such User of the agreement with CheMondis for the use of the CheMondis Platform (including in particular these Terms of Use);
(c) due to the User’s improper use of CheMondis Platform; or
(d) due to any violation by such User of any applicable laws or any rights (including any intellectual property rights) of any third party.
13. TERM, TERMINATION
13.1 Subject to Section 13.2, CheMondis and the User may each terminate the use of the CheMondis Platform for convenience at any time by providing two weeks’ notice thereof (including by e-mail or communication through the CheMondis Platform) to the respective other party. The right of either party to termination for cause shall remain unaffected.
13.2 If the use of the CheMondis Platform is based on a subscription, the applicable Subscription Terms shall determine the duration of the use of the CheMondis Platform, renewal periods, if any, and applicable termination notice periods.If the use of the CheMondis Platform is based on a subscription, the applicable Subscription Terms shall determine the duration of the use of the CheMondis Platform, renewal periods, if any, and applicable termination notice periods.
13.3 It is the User’s sole responsibility to create a backup of any of its data stored on the CheMondis Platform prior to any expiry or termination taking effect.
14. MISCELLANEOUS
14.1 CheMondis reserves the right to amend these Terms of Use from time to time in particular to reflect changing regulatory or legal requirements, further development of the CheMondis Platform or of its business model or for other operational and business reasons. CheMondis will reasonably consider the User’s legitimate business interests when making such changes and will notify the User of these changes no less than one month in advance (including by e-mail or communication through the CheMondis Platform). The changes shall be deemed accepted by the User unless the User objects to such changes by giving notice thereof to CheMondis (including by e-mail or communication through the CheMondis Platform) within such one month period. CheMondis will draw the User’s attention to this consequent approval in its respective notification. CheMondis reserves the right to terminate pursuant to Section 13.1 in case the User objects to the changes.
14.2 Notwithstanding Section 14.1, any modifications of and amendments to these Terms of Use must be in writing and signed, or communicated pursuant to Section 7 to be binding, unless any stricter form requirements exist, including any waiver of this form requirement.
14.3 These Terms of Use and the documents referenced herein, including any applicable Subscription Terms, constitute the entire agreement between CheMondis and Users in relation to the use of the CheMondis Platform and replace any prior understandings, agreements or representations by or between the parties.
14.4 Should any provision of these Terms of Use be or become partly or entirely invalid or unenforceable, this shall not affect the validity of the remaining provisions. The parties shall replace the partly or entirely invalid or unenforceable provision by a valid or enforceable provision which comes as close as possible to the parties’ original economic intent and purpose underlying the invalid or unenforceable provision. The same applies if these Terms of Use prove to be incomplete; in such event the parties shall faithfully agree on the inclusion of a provision which comes as close as possible to the parties’ original economic intent and purpose underlying the missing provision. However, it is the parties’ express will that this Section 14.4 is not construed as a mere reversal of the burden of proof (Beweislastumkehr), but as a provision that contractually excludes any doubts as to the validity of the remaining provisions of these Terms of Use.
14.5 In case of any dispute between a User and CheMondis in relation to the use of the CheMondis Platform, the parties will faithfully attempt to amicably resolve such dispute. Place of performance of all services rendered by CheMondis hereunder and the exclusive place of jurisdiction for all disputes arising under or in connection with the agreement between a User and CheMondis, including tort claims and pre-contractual claims, shall be Cologne, Germany. For the avoidance of doubt, any claims and disputes arising from or relating to any agreement between a Supplier and a Buyer (including without limitation any claims for supply of products, payment of the purchase price, warranty or liability claims) or between a User and an external service provider shall be dealt with and resolved solely by and between the respective Supplier and Buyer or between the respective User and the external service provider. CheMondis will not act as a mediator or arbitrator or otherwise be involved in any such disputes.
14.6 The agreement between any User and CheMondis for the use of the CheMondis Platform and any disputes arising out of or in connection with such agreement shall be governed by substantive German law without giving effect to any conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.